Fans: Enter At Your Own Risk

First presented at a Sports Liability Seminar

From the "We the North" campaign that the Toronto Raptors inspired back in the early spring to the successful Pan-Am games held here this summer to the very recent "Blue Jays Mania" that took the city by storm this fall, it is no exaggeration to say that Toronto was swept up in a sports fever this past year. Stadiums were jam-packed and ticket prices were through the roof. Games were attended in record numbers, and for those who recall the 7th inning of Game 5 between the Toronto Blue Jays and the Texas Rangers, you know that passions in the stadium were at near-record highs. Sporting events in general are often associated with throngs of fans (fanatics), fervent emotions, and consumption of alcohol. The interaction of these three factors creates a "perfect storm" that increases the likelihood of spectator injury.

There have been many notable incidents where spectators found themselves injured while attending a sporting event. Many scenarios involving spectator injuries have been publicized over the years — from objects flying into the stands (hockey pucks, baseballs and bats alike) to violent riots breaking out amongst fans. Certainly baseball fans will recall the tragic story of Shannon Stone, a 39-year-old firefighter who fell to his death at a Texas Rangers game in 2011, when American League MVP Josh Hamilton tossed a ball at him after a foul ball had landed near the stands. Unfortunately, these occurrences are not uncommon. In fact, a full third of the chapters in the book "Death at the Ball Park" by Robert Gorman and David Weeks assess incidents involving fans.1 As recently as August 29, 2015, a fan attending an Atlanta Braves game fell to his death from the upper deck of Turner Field.2

Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.

Contractual Liability

An injured spectator may commence an action for breach of contract. A "contractual entrant" is a person who has paid for the right to enter and use the premises and is owed a higher duty than that which is owed to mere invitees.3

An injured spectator who has paid for a ticket can potentially sue an occupier for breach of the implied term that the seat sold to him will be safe. In order for the spectator to qualify as acontractual entrant, he must be on the premises for primarily the same reason as was contracted for.

Although plaintiffs may be able to pursue this cause of action, the bulk of actions emerging from injuries to spectators are pursued under the auspices of the Occupiers' Liability Act.

Statutory Liability

The Occupiers' Liability Act (the "Act") provides that the occupier of a premises owes a duty to take reasonable care for the safety of persons and property entering the premises. According to section 1 of the Act, an occupier is defined to include persons in physical possession of the premises or who are responsible for, or have control over, the condition of the premises, the activities conducted there, or the persons allowed to enter.4 Section 3(2) of the Act clarifies this duty as applying to risks caused not only by the condition of the premises, but also to the activities that take place on or in the premises.

The plaintiff has the onus of establishing on a balance of probabilities that the occupier breached its duty and was negligent in the circumstances. For an action to succeed, the plaintiff must establish the following elements:

that the defendant was the occupier of the property were the incident occurred; that the defendant breached a duty of care owed to the plaintiff; that the breach caused the injuries that the plaintiff sustained; and, that the plaintiff suffered damage.5 The plaintiff must prove on a balance of probabilities that the defendant, as occupier of the premises, breached its standard of care in the given case. The standard is one of reasonableness, not perfection. The occupier is not automatically liable by virtue of the fact that someone was on its premises and sustained injuries.6

Based on the foregoing, the operator of a sporting event or facility is under a duty to exercise reasonable care in organizing and supervising the event to ensure that both participants and spectators are reasonably safe. The occupier of the premises or the operator of the event or facility thus owes a statutory duty towards spectators that enter the premises.

A spectator who is injured during the course of a sporting event may commence an action against the occupier of the facility where the sporting event was held. Notably, under the Act, there can be more than one occupier of the same premises. For example, the owner of the premises and the occupier with control of the premises need not be the same party. In such instances, the court will need to look at the specific facts of the case in order to determine liability.7 An action brought by a spectator may target the individual participant, team, league, or other appropriate parties.

In Olinski v. Johnson, the Ontario Court of Appeal found that a sports team's obligations as an occupier may extend beyond the playing surface to include other areas of the arena as well.8 In this case, the owner of...